Robin Selley

As we know, following most accidents where an injury is sustained, the injured party will be able (at least for the time being) to obtain some treatment through the NHS soon after an injury has been sustained.

Unfortunately, there can be lengthy waiting times through the NHS for non-urgent cases so those injured parties will often seek private treatment. Naturally enough, most Claimants would be keen to recover as quickly as possible after an accident in order to minimise the extent and effect of the injuries, but also to minimise any ongoing loss they may be suffering.

Cue the recommendation for private treatment to be provided, most commonly by way of physiotherapy treatment for that soft tissue injury.

As an ATE insurer we often see claims being made on failed cases, for various disbursements including the cost of treatment that may have been provided to the Claimant, but generally speaking, such treatment costs comprise part of the compensation award sought by the Claimant. These treatment costs are not solicitor disbursements, they form part of the claim itself.

So, what to do before authorising such treatment to be provided as part of a claim?

Firstly, make sure that liability for the accident is not in dispute! If it is, then the Claimant should be carefully advised that they may have to foot the bill for any private treatment provided.

Where an admission of liability is obtained, interim payments can often be arranged to fund treatment before the claim is finally settled and the Rehabilitation Code, last revised in December 2015, provides:

an approved framework for injury claims that enables claimant representatives and compensators to work together. Its aim is to promote the use of rehabilitation and early intervention in the compensation process so that the injured person makes the best and quickest possible medical, social and psychological recovery”.

All sounds straightforward doesn’t it?

We have already mentioned the need to mitigate one’s loss and that may also apply to the costs of private treatment that may be obtained.

In the unreported case of Nuttal V Chew on 22 March 17 the Defendants successfully argued that the cost of treatment obtained by the Claimant, should be limited to the costs of treatment which the Defendant insurer had previously offered to arrange and pay for.

The Defendant’s insurers had advised the Claimant that they were able to and willing to instruct a Rehabilitation Provider to assess the Claimant’s needs but importantly to “provide rehabilitation as required at a cost of £41 per session.  We will therefore only consider any rehabilitation costs up to £41 per session, as per the Rehabilitation code 2007”.

The Claimant’s treatment costs were in excess of these amounts so the Defendant argued that the principle from the case of  Copley v Lawn [2009] EWCA Civ 580 in respect of mitigation should apply.

The Deputy District Judge agreed that the principles, applied by the Court of Appeal to the rates of charge for credit hire vehicles, were equally as applicable to the rates recoverable for private physiotherapy treatment.

So, be mindful when incurring treatment costs, can they be recovered as part of the claim itself? If so, are the treatment costs reasonable?

A Rocky Road to Recovery